Alan and Adam Schorr were featured in Business Spotlight section of the latest issue of South Jersey magazine. A link to the article can be found here.

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On Tuesday, June 21, 2022, Alan and Adam Schorr of Schorr Law, won a jury verdict in the race discrimination trial of Green v. Foulke Management Corp.  The jury ruled in favor of the Plaintiff, Joshua Green on all three counts – hostile working environment, discriminatory termination, and retaliation.  The jury awarded $43,640.00 in compensatory damages.  The matter later resolved prior to punitive damages for a confidential amount. Congratulations to Josh Green on his trial victory! Here is a link to the filed Complaint.

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One of the industries that is seeing a significant amount of litigation surrounding employees moving to competing companies is solar power sales, a business that is seen as having tremendous growth potential. Employees ranging from installers to managers are moving from company to company in apparent violation of signed agreements, with employees arguing that the rules are too restrictive and employers looking to attract new talent arguing that they are quashing competition. The courts are viewing each agreement in terms of whether they are focused to the specific business and to a stated goal such as safeguarding intellectual property or trade secrets rather than being retaliatory or overly restrictive.

The legislation that has been proposed in the New Jersey state assembly would establish certain groups as being exempt from noncompete clauses, including those who have been at a job for less than one year, those low-paid employees who are nonexempt from overtime pay, and those terminated without a determination of misconduct.

While non-compete agreements are particularly valuable to industries where trade secrets are common and where the sharing of them could jeopardize a business’ competitive edge, there are many other situations like those that President Biden is trying to prevent, where low-paid employees find their ability to leave one job for a higher-paying opportunity is jeopardized. If you are concerned that you are being unfairly restricted by a non-compete agreement that you’ve signed or you have been asked to sign an agreement and you’re not sure whether you should do so, contact the employment attorneys at Schorr Law today to set up a time to discuss your situation. We are here to help.

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The New Jersey Division on Civil Rights’ study was simply titled “Preventing and Eliminating Sexual Harassment in New Jersey.” It revealed that the problem of harassment is not limited to any one race, religion, gender or sexual orientation, and that it in fact impacts all types of people. It pointed to the imbalance of power in the workplace, in housing and in places of public accommodation as the root of workplace employment discrimination and sexual harassment, saying that this imbalance increases the likelihood of harassment, as well as the chance that it will not be reported.

The report concluded that employers need to be aware of and act upon shifts in attitude about workplace discrimination and harassment, and this dovetails with a recent ruling in the New Jersey Supreme Court. The court asserted that in weighing whether an employer has been negligent regarding workplace sexual harassment or discrimination, courts should consider whether the accused employer made training available to supervisors and employees. Training is one of the key changes that the proposed changes to NJLAD would make: it would require all employers to provide anti-discrimination and anti-harassment training to educate their staff about the prevention of these offenses.

Other proposed changes would extend the amount of time in which workers could file a Law Against Discrimination Claim against an employer from two years to three. It would also add six months to the time in which a complaint against their employer could be filed with the New Jersey Division on Civil Rights. For the courts, there would be a loosening of the guidelines for what constitutes a violation of the law, allowing a single severe violation to be interpreted as representative of a severe or pervasive problem that leads to liability.

The announcement of these proposed changes comes just one month after Governor Phil Murphy pledged that he would make sweeping changes to the state’s workplaces. Speaking of the proposed legislation changes he said, “The message from survivors and advocates alike has been clear: It’s time for New Jersey to reject the norms of yesterday that overlooked workplace harassment and discrimination as business as usual. With this legislation, New Jersey has the opportunity to set a high standard for progressive workforce policies and give marginalized voices the ability to hold perpetrators accountable.”

If you have been the victim of workplace discrimination or sexual harassment, the New Jersey Law Against Discrimination provides you with invaluable protections. To learn how we can help you access these protections and assert your rights, contact us today.

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The case was filed by Damara Scott, an employee of PNC’s Glen Ridge, New Jersey branch. In October of 2013, customer Patrick Pignatello approached Ms. Scott in the vestibule outside of the bank’s entrance and sexually harassed her, pressing his crotch into her backside and rubbing against her. According to testimony provided in court, the 77-year-old Pignatello had long been a customer of the bank, and he had a history of groping and harassing both female customers and female employees. He had previously been banned from the premises, but only on a temporary basis. Ms. Scott, a wealth manager at the bank at the time, not only pressed criminal sexual contact charges with the police when the incident occurred, but also filed suit against her employer for a violation of the New Jersey Law Against Discrimination, claiming that they had failed to protect her from unwelcome touching by a customer.

In response to her lawsuit, PNC filed a motion to have the case dismissed, arguing that she had no standing to file a NJLAD claim because Mr. Pignatello was not her boss. The bank unsuccessfully argued that making the company responsible for the actions of its customers represented “an attempt at a significant expansion of the protections afforded under the New Jersey Law Against Discrimination.” They claimed that the incident was unforeseeable, did not occur in the workplace, and was entirely outside of their control.

“This is critically important given that plaintiff’s narrow path to a recovery in this case is through the LAD, which, by its very definition, is a workplace protection statute so that individuals are not subject to unwarranted advances or conduct, within the workplace, by individuals who have power over them within the workplace,” the bank said in its motion. “Pignatello does not remotely fall into that category of individual,”

When their motion for summary judgment failed, PNC tried to argue the case using personal injury law, but Ms. Scott’s attorney focused the jury on the violation of New Jersey’s Law Against Discrimination, which specifically applies to issues of sexual harassment in the workplace. The crux of the plaintiff’s argument was that employers have a duty to protect their employees from falling prey to this type of incident.

As part of that approach, Scott pointed to the previous bans that had been placed on Pignatello’s presence in the bank branch, as well as their refusal to close his accounts because of his holdings and potential for bringing in new clients. Ms. Scott’s attorney made a strong argument that employees have a right to expect protection in the workplace from other employees as well as from customers, saying, “All employers have an obligation to provide a safe workplace, no matter who does the harassing.” They also provided evidence that the bank had previously provided protections for employees from customers, submitting evidence that another customer had their accounts closed based on having used profanity against an employee.

The bank denied knowledge of any previous incidents and pointed to their having provided sexual harassment training just months before the incident as proof of their dedication to preventing discrimination and harassment in the workplace. Upon questioning, however, it was determined that none of the employees in Ms. Scott’s branch had been provided that training, and the bank did not submit a sexual harassment policy into evidence to defend themselves.

The case was heard in Essex County before Superior Court Judge Robert Gardner. The jury listened to evidence over a three-week period, concluding that the assault had happened, that it represented harassment on the basis of gender as described under the New Jersey Law Against Discrimination, and that Ms. Scott’s employer was liable for the incident. They awarded her $300,000 in past lost wages, $500,000 in future lost wages, $800,000 for past emotional destress and the same amount for future emotional distress.

PNC indicated that it plans to appeal the decision, and issued a statement saying in part, “PNC does not condone harassment of any kind. We have a long-standing history of providing a safe workplace for our employees, and robust policies and procedures to help ensure that we continue to do so. We are disappointed by the verdict, even though the jury expressly found that this was not a case where punitive damages were appropriate. We intend to appeal based on errors made by the court.”

If you have been the victim of harassment or discrimination in the workplace, your rights may have been violated. For more information on whether you are eligible to file a claim under the New Jersey Law Against Discrimination, contact us today to set up a time to discuss your situation.

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The new law requires each facility to offer either on-site or off-site influenza vaccinations to each of their employees and to require that each health care worker employee receive that immunization each year. Though employees are permitted to get their vaccinations outside of their employer-provided vaccination program, those who do so are required to provide proof that they were immunized elsewhere, including the lot number of the vaccination received. More importantly, the only exemption being provided to employees regarding the vaccination is for those who can provide proof of a medical condition that contraindicates them receiving the vaccine as approved by the immunization practices outlined by the Centers for Disease Control and Prevention.

For the health care facilities, the new law means that they are now required to keep records of both the number of vaccinations that have been received by employees and the number of employees that have medical exemptions, and report this data to the Department of Health  in order to ensure that the vaccination percentage rate of their workforce is appropriate. The facilities are also required to provide their employees with an educational program about the importance of influenza control measures and vaccinations, and to require any employee who doesn’t receive the vaccination to wear a surgical or procedural mask when coming into contact with patients or entering any common areas within the facility.  Alternatively, those employees are to be removed from roles that put them in direct contact with patients, though they may not be terminated or have their wages reduced as a result.

The new law is silent on how employers are to treat religious objections to flu vaccinations.  The Law Against Discrimination requires that all employers must reasonably accommodate sincerely-held religious objections to extent that it does not cause undue hardship.  The new law now defines the wearing of a surgical or protective mask to be such a reasonable accommodation, and therefore, there should be no legitimate reason why an employer should refuse to accommodate persons with sincerely-held religious objections.  If your job is being threatened due to your objection to the flu vaccination, feel free to call us for a free initial consultation.

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There has long been a federal law protecting those who wear their hair in an afro style, but that law does not extend to protect other natural hairstyles such as braids, twists, dreadlocks, or similar styles typically worn by black individuals, and the State of New Jersey did not incorporate that language into their laws against discrimination. While New Jersey Senator Cory Booker has recently introduced a bill extending the federal protections to those other textures and hairstyles, New Jersey House Bill S3945 was introduced just months after a referee forced Johnson to choose between forfeiting his match and cutting off his dreadlocks. The bill was introduced in June of 2018 in response to the incident and it took little time for both of New Jersey’s legislative bodies to approve it overwhelmingly.

When Governor Phil Murphy signed the bill into law on Thursday, he issued a statement saying, “No one should be made to feel uncomfortable or be discriminated against because of their natural hair. I am proud to sign this law in order to help ensure that all New Jersey residents can go to work, school, or participate in athletic events with dignity.”

One of the bill’s sponsors was state Senator Sandra Cunningham, D-Hudson, who responded to the bill’s passage by saying, “It is unacceptable that someone could be dismissed from school or denied employment because they wear their exactly how it grows, but that has been the reality for many black and brown individuals. Today, here in New Jersey, we’ve changed that.” The new law will add an amendment to the New Jersey Law Against Discrimination (NJLAD) to add the words “traits historically associated with race, including, but not limited to, hair texture, hair type and protective hairstyles.” Similar laws have been proposed in Tennessee, Michigan and Illinois, and already exist in both California and New York.

If you have been discriminated against on the basis of your hairstyle or any other area offered protection under New Jersey’s Law Against Discrimination, we can help. Contact us today to set up a time to discuss your situation and learn about the options available to you.

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The case filed by Serena Bhaduri is all-too familiar to countless women who have faced their own discriminatory actions after revealing their pregnancies. Bhaduri is a sales executive who had been a top performer from the time she joined the publication’s digital sales department in late 2017. But when she went out on maternity leave in November of 2018 and gave birth to a son who died, everything changed. Upon her return to work she was met with harsh criticism from two managers who claimed that she had become too “negative.” In her lawsuit, Bhaduri claims that both managers treated her far differently after her return, sabotaging her work and then firing her as soon as she announced that she was expecting again.

The complaint against USA Today not only notes the firing, but also the ill treatment that she received when she was still grieving her son. The complaint states, “It is truly astonishing that USA Today would punish and shun Ms. Bhaduri at a time when she was most vulnerable, simply because it was potentially costly and inconvenient to continue employing a pregnant woman.”

Though Ms. Bhaduri returned to work shortly after her son’s death, she claims that her direct supervisor began criticizing her in a way that differed from the treatment afforded other employees. When she complained to another supervisor about the harsh treatment she was receiving she got no relief. She eventually turned to the company’s COO for assistance, but was criticized for these efforts and told that her poor attitude was impacting her coworkers.

Following this she took one month of bereavement leave, only to find that the clients that she had worked hard to cultivate had been assigned to a single, childless male colleague. Upon her return she was not allowed to return to working with her previous clients. Shortly after her return from bereavement leave Ms. Bhaduri revealed that she was pregnant again, only to find that meetings that had previously been scheduled with her managers had been canceled. She was told shortly thereafter that her employment was being terminated due to her “negative attitude.” In her lawsuit Ms. Bhaduri points out a pattern of similar mistreatment of other pregnant USA Today employees, including another woman who was fired from her team shortly after announcing that she was expecting.

The New Jersey Law Against Discrimination was amended in 2014 to specifically forbid discrimination on the basis of pregnancy through the Pregnant Workers Fairness Act (PWFA). The PWFA protects all women who are pregnant or breastfeeding and all women who have suffered any medical complications as a result of pregnancy, childbirth, or breastfeeding. The PWFA requires reasonable accommodations to be made for these employees. For pregnant workers, this includes, but is not limited to, “bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work.” For breastfeeding employees, this includes, but is not limited to, “reasonable break time each day to the employee and a suitable room or other location with privacy, other than a toilet stall, in close proximity to the work area for the employee to express breast milk for the child.”

Discrimination based on pregnancy is illegal in the state of New Jersey. If you have been a victim of the type of treatment that Ms. Bhaduri suffered at the hands of her employer, we can help. Contact us today to learn more.

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Updated March 29, 2019.

Deanna Tyciak is an administrative assistant in Franklin Township, New Jersey’s public works department and is the department’s lone female employee. She has worked for the department since 2015, and in the years that she’s been there she has suffered constant and repeated sexual harassment and abuse at the hands of the department’s director. According to the Complaint, after repeatedly registering her complaints and getting no response or assistance, she has filed a lawsuit against both the director, Charles M. Bosco, and the township, accusing them of violating the New Jersey Law Against Discrimination. Bosco has also been charged with criminal sexual contact and official misconduct.

The list of offenses Bosco is accused of is shocking, and his alleged pursuit of Mrs. Tyciak was relentless. Though the most egregious offense reportedly happened when he forced her head down to his groin, forcing her face to “touch his penis on the outside of his clothing,” the Complaint (read the full complaint here) indicates that was far from the only abusive behavior he openly pursued. She claims that he repeatedly pressured her to have sex, indicating that her life at work would “be easier” if she complied, frequently grabbed her ponytail, calling it “a good holding knob,” and made lewd remarks about her in front of her male colleagues, indicating that he wanted to have sex with her. He ordered a camera to be installed above her desk in order to constantly watch her, and went so far as to urinate all over the walls, floors and fixtures of the department’s ladies room and then declare it “unisex” in order to prevent her from using it.

According to the Complaint, which you can read here, faced with this constant harassment Tyciak both directly addressed Bosco, asking him to stop, and solicited help from township officials, despite correctly predicting that they would offer no assistance in response to the two letters that she sent. In response to her rejection and complaints, Mr. Bosco retaliated in several ways: he called her “dumb blonde” and “bitch,” cut her hours and demoted her.

The lawsuit that Tyciak has filed under the rules of the New Jersey Law Against Discrimination, which prohibits “harassment including unwelcome sexual advances, requests for sexual relations or other verbal or physical conduct of a sexual nature. Under the law, Tyciak will be able to seek compensation for the damage that she suffered.

If you have been the victim of discrimination or harassment in the workplace, you may be entitled to pursue legal action. Contact us today to learn more about your rights and how we can help.

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By Jenelle Hubbard

EEOC v. Pallet Companies, Civil Action No. 1:16-cv-00595-DRB; EEOC v. Scott Medical Health Center, P.C., Civil Action No. 2:16-cv-00225-CB.

This week we look at two lawsuits filed in federal court on March 1, 2016 by the U.S. Equal Employment Opportunity Commission (EEOC) – one against Pallet Companies (d/b/a IFCO Systems NA, Inc.) in the U.S. District Court for the District of Maryland, Baltimore Division and the other against Scott Medical Health Center, P.C. in the U.S. District Court for the Western District of Pennsylvania. These two cases are the first two sex discrimination cases that the EEOC has ever filed based on sexual orientation discrimination under Title VII of the Civil Rights Act of 1964.

To provide some background, Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees of the basis of race, color, religion, sex, or national origin. The EEOC is the federal agency that is responsible for interpreting and enforcing Title VII. While Title VII does not explicitly include sexual orientation as a basis on which it prohibits discrimination, the EEOC has concluded that harassment and other discrimination because of sexual orientation is prohibited sex discrimination under Title VII.

In its lawsuit against IFCO Systems, the EEOC alleges that IFCO Systems unlawfully discriminated against a lesbian employee on the basis of her sex (female) by subjecting her to harassment which culminated in her discharge. For example, the EEOC alleges that the employer’s night shift manager began harassing the employee on a weekly basis, making comments such as “I want to turn you back into a woman;” “I want you to like men again;” and “Are you a girl or a man?” The EEOC further alleges that the employee complained about the night shift manager’s comments and behavior but no action was taken. When the employee complained about the night shift manager’s harassment and comments again on April 18, 2014, the EEOC alleges that she was terminated just a few days later in retaliation for making her complaints.

In its lawsuit against Scott Medical Health Center, the EEOC alleges that the Defendant employer subjected a gay male employee to a sexually hostile work environment perpetuated by the employer’s telemarketing manager. For example, the EEOC’s Complaint against Scott Medical Center alleges that the telemarketing manager routinely made unwelcome and offensive comments about the employee, including but not limited to regularly call him “fag,” “faggot,” “fucking faggot,” and “queer,” and making statements such as “fucking queer can’t do your job.” When the employee complained about the harassing behavior, the EEOC alleges that the employer expressly refused to take any action to stop the harassment and constructively discharged the employee as a result of the intolerable working conditions and the Medical Center’s failure to take prompt and effective action to prevent or alleviate it.

The EEOC brought both of these lawsuits under Title VII of the Civil Rights Act of 1964 after the EEOC first attempted to reach pre-litigation settlements with IFCO Systems and Scott Medical Health Center through its conciliation process.

Where the EEOC does not resolve charges of employment discrimination through conciliation or other informal methods, the Commission may pursue litigation against private sector employers such as IFCO Systems and Scott Medical Health Center. However, the EEOC is exceptionally selective with respect to which cases they file suit on behalf of aggrieved persons. According to the statistics published on the EEOC’s official website, in the year 2015, 89,385 individual charges were filed with the Commission; the EEOC only filed 142 merit lawsuits in 2015 (which includes not only direct lawsuits and interventions alleging violations of the substantive provisions of the statutes enforced by the Commission, but also lawsuits to enforce administrative settlements).

In a prepared statement, the EEOC’s General Counsel David Lopez stated: “With the filing of these two suits, EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation.  While some federal courts have begun to recognize this right under Title VII, it is critical that all courts do so.”

In sum, the mere filing of these cases by the EEOC is significant and these cases will be very important to watch as they could lead to the benefit of court rulings on the EEOC’s interpretation of Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on sexual orientation.

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